Weisberg v. Boatmen's Bank

• Decision Date: 20 December 1919
• Docket Number: No. 20175.,20175.
• Citation: 280 Mo. 199,217 S.W. 85
• Parties: WEISBERG v. BOATMEN'S BANK.
• Court: Missouri Supreme Court

217 S.W. 85

280 Mo. 199

WEISBERG v. BOATMEN'S BANK.

No. 20175.

Supreme Court of Missouri, Division No. 1.

December 20, 1919.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Isaac Weisberg against the Boatmen's Bank. From judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

Leonard & Sibley, Glen Mohler, and Geo. L. Stemmler, all of St. Louis, for appellant. Lehmann & Lehmann and Fauntleroy, Cullen & Hay, all of St. Louis, for respondent.

BLAIR, P. J.

This is an action for damages for injuries appellant alleges he suffered as a result of the burning of a building in St. Louis which respondent owned, and in part occupied as a banking house. The remainder of the building was occupied by the Missouri Athletic Club, respondent's lessee. A general demurrer to the petition was sustained, and judgment rendered after appellant refused to plead further. The questions presented by counsel are such that it is not necessary to set out the petition in full. The basis of the action is the alleged violation of the provisions of certain sections of city ordinances pertaining to buildings in St. Louis.

These provisions will be set out sufficiently in connection with the consideration of the questions counsel discuss.

I. In his statement of the case appellant includes ordinance provisions not pleaded either in full or in substance. These cannot be considered. State ex rel. Oddle et al. v. Sherman, 42 Mo. loc. cit. 214; Peterson v. United Rys., 270 Mo. loc. cit. 74, 192 S. W. 938.

II. Was respondent's building such that the ordinance pleaded applied to it? The petition alleges that the structure was erected in 1889. It consisted of seven stories, and was then more than 90 feet high. The ordinances relied upon in the petition were passed in 1903. The building ordinance of 1903 provides (section 38) that —

"No building already erected (or hereafter to be erected) in the city of St. Louis shall be enlarged, raised, altered or built upon in such manner that were such building wholly built, or constructed after the passage of this ordinance, it would be in violation of any of the provisions of this article."

Section 40 provides that —

"No wall, structure, building or parts thereof, shall hereafter be built, constructed, altered or repaired, except in conformity with the provisions of this article."

Section 100 sets forth the character of construction required in what are denominated "first-class" buildings. The petition alleges that the building in question, when tested by the provisions of section 100, was not, either before or after alteration, a building of that class. Section 101 of the ordinance provides:

"Any building hereafter erected, altered or enlarged to a height greater than ninety feet above grade [the distance from sidewalk level to the highest part of the building] shall be a building of the first class and shall comply in its construction with all the provisions and requirements contained in this article relating to buildings of said class."

Other sections require permits for building, etc., and fix penalties for failure to secure them.

The briefs do not question the authority of the city, in the exercise of its delegated police power, to impose restrictions upon the alteration, reconstruction, repair, and augmentation of buildings of nonfireproof construction situate in congested districts. The first question presented is whether the ordinance pleaded applies to the building described in the petition. It is not denied that the allegations of the petition show that the building in question is not a "first-class building" as defined in the ordinance section set out in the petition. It is urged that section 101 of the ordinance, as pleaded, does not purport to apply to any building which was 90 or more feet high when the ordinance was passed in 1903. The argument is that the words "any building hereafter * * * altered or enlarged to a height greater than 90 feet above grade" includes only such buildings as, prior to the enactment of the ordinance, were less than 90 feet in height and were raised to a greater height than 90 feet by the alteration or enlargement. Let it be conceded that a literal construction of the ordinance language would support this contention. It is also true that this language is susceptible of the other construction that any alteration or enlargement which reaches a greater height than 90 feet, without regard to the original height of the building, constitutes an...